Fristoe v. Reynolds Metals Co.
| Decision Date | 03 January 1980 |
| Docket Number | No. 77-3832,77-3832 |
| Citation | 615 F.2d 1209 |
| Parties | 104 L.R.R.M. (BNA) 3041, 88 Lab.Cas. P 11,999 Jack FRISTOE, Appellant, v. REYNOLDS METALS CO. et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jack Fristoe, in pro. per.
Robert F. Walker, James L. Marable, III, Henry R. Fenton, Los Angeles, Cal., argued for appellees; Matthew B. F. Biren, Los Angeles, Cal., on the brief.
Appeal from the United States District Court for the Central District of California.
Before WRIGHT and KENNEDY, Circuit Judges, and HATFIELD, District Judge. *
Appellant challenges the removal of this action against his employer and labor unions to federal district court. He alleges that the employer discharged him in violation of the collective bargaining agreement and that the union breached its duty of fair representation in processing his grievance.
Moreover, he contends that his ignorance of the right to appeal the union's refusal to arbitrate his grievance excuses his failure to exhaust internal union remedies. He also asserts error in the inadvertent omission of two depositions from the record.
The district court granted the defendants' motion for summary judgment, and we affirm.
Fristoe, an employee of Reynolds Metals Co. (Reynolds), was involved in off-premises fisticuffs with his supervisor. The altercation apparently arose from a job-related dispute between them. On the basis of Fristoe asked his union steward to file a grievance over the discharge. The union took the grievance through the first three steps of the procedure but Reynolds refused to reinstate him. Because the evidence was unfavorable to Fristoe and the fight had been work-related, the union decided not to take the grievance to the fourth step, arbitration, and told Fristoe it was withdrawing the grievance.
signed statements by two eyewitnesses that Fristoe provoked the fight, Reynolds discharged him.
Unaware of the appeals procedure provided by the union's constitution, Fristoe took no further action regarding his discharge until he filed a complaint in California state court. 1
He appeared pro se in the state proceeding. In his original complaint he alleged several causes of action including conspiracy, breach of contract, fraudulent misrepresentation, and violations of constitutional rights. He designated as defendants Reynolds and unnamed officers of the district and international unions, 2 and Does 1-100, inclusive.
He attempted to serve the unnamed officers of Reynolds and the unions by leaving the summons and complaint with a secretary at Reynolds and with a clerical worker at the union, neither of whom was authorized to accept process.
Reynolds, who had been properly served, filed a petition for removal to federal court. Although the petition was filed one day late, Fristoe did not object to removal on untimeliness grounds. He contended that the complaint alleged only common law causes of action, that he sought redress from individuals, and that he was not bringing an action under Labor Management Relations Act (LMRA) § 301, 29 U.S.C. § 185. He also argued that removal was improper because the other named defendants did not join in the removal petition.
The district court judge, after extensive questioning of Fristoe as to the nature of his allegations, determined that the complaint could be construed as alleging a breach of the collective bargaining agreement which would confer federal jurisdiction under LMRA § 301.
He granted motions of Reynolds and the unions to dismiss the complaint as to the unnamed parties and to quash service of process, finding that the complaint did not sufficiently identify the defendants. It also dismissed as to Does 1-100, concluding that joinder of Doe defendants was not permitted in federal court, and denied Fristoe's motion to remand.
The defendants moved for summary judgment which was granted. The court concluded that Fristoe had failed to exhaust his internal union remedies and had made no showing that the union had breached its duty of fair representation; that the record did not support any claim against Reynolds for breach of the collective bargaining agreement; and that the evidence established no participation by the International in any conduct of the union.
We face these issues:
(1) Was removal proper?
(2) Does the record support the district court's order granting summary judgment in favor of each defendant?
Fristoe contends his original state court complaint did not confer federal subject matter jurisdiction.
Although he had not mentioned LMRA § 301 in the complaint, and stylized his causes of action in common law terms, the court questioned him carefully to determine the nature of his claims. It is apparent from the allegations in his complaint and his responses to the court's questions that Fristoe was alleging that Reynolds wrongfully discharged him in breach of the collective bargaining agreement and that the union improperly handled his grievance.
Mere omission of reference to LMRA § 301 in the complaint does not preclude federal subject matter jurisdiction. The court's recharacterization of Fristoe's complaint as one arising under § 301 is required by federal preemption doctrines.
When principles of federal labor law are involved, they supersede state contract law or other state law theories. Republic Steel Corp. v. Maddox, 379 U.S. 650, 657, 85 S.Ct. 614, 618, 13 L.Ed.2d 580 (1965); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 102-03, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962); Johnson v. England, 356 F.2d 44, 48 (9th Cir.), cert. denied, 384 U.S. 961, 86 S.Ct. 1587, 16 L.Ed.2d 673 (1966); accord, Sheeran v. General Electric Co., 593 F.2d 93, 96-97 (9th Cir. 1979).
On similar facts, the Sixth Circuit concluded:
We cannot accept the basic premise of Avco's argument that its action is based solely upon a State created right. Section 301 of the Labor Management Relations Act, 29 U.S.C., Section 185, confers jurisdiction upon the District Court . . . to enforce collective bargaining agreements in industries affecting interstate commerce. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), held that Federal substantive law preemptively applies in suits under Section 301 . . . .
Thus, according to the findings of the Supreme Court, as enunciated in Lincoln Mills, supra, and expanded in Lucas Flour Co., supra, all rights and claims arising from a collective bargaining agreement in an industry affecting interstate commerce arise under Federal law. State law does not exist as an independent source of private rights to enforce collective bargaining contracts. While State courts may have concurrent jurisdiction, they are bound to apply Federal law. . . . The force of Federal preemption in this area of labor law cannot be avoided by failing to mention Section 301 in the complaint.
Avco Corp. v. Aero Lodge No. 735, Int'l. Ass'n of Machinists and Aerospace Workers, 376 F.2d 337, 339-40 (6th Cir. 1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).
Construing Fristoe's complaint to allege a breach of the collective bargaining agreement, we conclude that the district court had subject matter jurisdiction under LMRA § 301.
Reynolds concedes it filed the petition for removal one day late. See 28 U.S.C. § 1446(b). It argues that this defect is not jurisdictional and that Fristoe should be estopped from raising it because he objected only after this appeal was taken.
The statutory time limit for removal petitions is merely a formal and modal requirement and is not jurisdictional. See Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702-04, 92 S.Ct. 1344, 1347-48, 31 L.Ed.2d 612 (1972); Mackay v. Uinta Development Co., 229 U.S. 173, 176-77, 33 S.Ct. 638, 639, 57 L.Ed. 1138 (1913); 1A Moore's Federal Practice and Procedure P 0.168(3.-5) (1974 ed.).
Although the time limit is mandatory and a timely objection to a late petition will defeat removal, a party may waive the defect or be estopped from objecting to the untimeliness by sitting on his rights. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17, 71 S.Ct. 534, 541, 95 L.Ed. 702 (1951); Mackay, 229 U.S. 173, 33 S.Ct. 638, 57 L.Ed. 1138; Transport Indemnity Co. v. Financial Trust Co., 339 F.Supp. 405, 407 When a case such as this has been removed and tried "on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction . . . ." Grubbs, 405 U.S. at 702, 92 S.Ct. at 1347.
(C.D.Cal.1972); Green v. Zuck, 133 F.Supp. 436 (S.D.N.Y.1955).
Because the district court would have had original jurisdiction here, and we find that Fristoe had waived the untimeliness of the removal petition by failing to object on these grounds until this appeal, his point is not well taken.
In the original state court action, Fristoe named as defendants Reynolds Metals Company and unnamed officers of Reynolds and of the unions later joined as defendants. The removal petition was filed only on behalf of Reynolds. Fristoe contends removal was improper because all of the defendants did not join in the removal petition. We disagree.
"Defendants . . . are to be treated collectively; and, as a general rule, all defendants who may properly join in the removal petition must join." 1A Moore's Federal Practice and Procedure, 447, P 0.168(3.-2), cited by P.P. Farmers' Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546, 547 (7th Cir. 1968).
First, since the unions were not named as defendants in the state court action their joinder would not have been proper. Consequently, they were...
To continue reading
Request your trial
-
Stemmle v. Interlake S.S. Co.
...Gases, 676 F.2d 270, 273 (7th Cir.1982) ); Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.1983) (same); Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980) (same).Notably, the Second Circuit does not appear to have endorsed a waiver exception to an otherwise timely remova......
-
Garibaldi v. Lucky Food Stores, Inc.
...termination under 29 U.S.C. Sec. 185 (Sec. 301 of the Labor Management Relations Act (LMRA)), 2 on the basis of Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir.1980). The court apparently retained jurisdiction of the second cause of action for intentional infliction of emotional dist......
-
Sarnelli v. Tickle
...World Airlines, Inc., 396 F.Supp. 9, 12 (S.D.N.Y.1975). 6 Billy Jack, supra, 511 F.Supp. at 1186; See, e.g., Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1212 (9th Cir.1980); North Davis Bank v. First National Bank, 457 F.2d 820, 823 (10th Cir.1972); Avco Corp. v. Aero Lodge No. 737, Inter......
-
Chrysler Workers Ass'n v. Chrysler Corp.
...denied, 459 U.S. 968, 103 S.Ct. 296, 74 L.Ed.2d 279 (1982) (Tennessee libel law preempted by federal labor law); Fristoe v. Reynolds Metal Co. 615 F.2d 1209 (9th Cir.1980); Williams v. Pacific Maritime Ass'n, 421 F.2d 1287 (9th Cir.1970); Avco Corp. v. Aero Lodge No. 735 IAM, 376 F.2d 337 (......
-
Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy for Claims Brought Under the Federal Declaratory Judgment Act
...University of Washington, 856 F.2d 1375 (9th Cir. 1988); Loftin v. Rush, 767 F.2d 800 (11th Cir. 1995); Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980); Computer People, Inc. v. Computer Dimensions Int'l, 638 F. Supp 1293 (M.D. La. 1986). This statute provides:A motion to rema......